In a prior post, it was discussed what may arise from a decision to exclude your children from your Will and so today’s topic will cover: What may arise from your decision to exclude your spouse?

Section 60 of the Wills Estates Succession Act (“WESA”) empowers a court to vary the terms of a Will that does not make adequate provision for the Will-maker’s spouse (including common law spouse) where such spouse makes an application to the court for a variation of the Will-maker’s Will. To quote:

S.60. Despite any law or enactment to the contrary, if a Will-maker dies leaving a Will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the Will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the Will-maker’s estate for the spouse or children.

The words “adequate”, “just” and “equitable” have been judicially considered by the Courts and have determined that the Will-maker’s Will must satisfy the Will-maker’s legal and moral obligations to the surviving spouse.

When determining what the Will-maker’s legal obligations are to the surviving spouse, the Courts will look to what the surviving spouse would have received if the parties had separated and then look to what the surviving spouse’s entitlement would be under the mean. BC courts have measured “adequate, just and equitable” by comparing what the surviving spouse received under the Will with what they would have been entitled to under the Family Law Act of British Columbia. This means in cases of long term marriages where assets were intermingled, the surviving spouse’s claim to a share of the Will-maker’s estate is stronger than those of a spouse who was married to the Will-maker for a short period of time and whose finances were separate from the Will-maker.

When determining what the Will-maker’s moral obligations are to the surviving spouse, the Court will consider whether the provisions of the Will-maker’s Will are within society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards.

In light of the afore-going, you would think it would take a fairly unique set of facts for a Court to uphold a Will-maker’s decision to entirely exclude a long term spouse from being a beneficiary under the terms of the Will but the Courts have in fact done so where the parties, in a second marriage, maintained separate finances and the Will-maker make provision for the surviving spouse to live in the home for as long as the surviving spouse wanted.

Ultimately, the question of whether a Court will uphold the Will-maker’s decision to exclude or limit a spouse’s entitlement to the estate will depend on the specific facts surrounding the marriage of the parties and the provisions of the Will-maker’s Will.

If you or a loved one has been excluded from an estate of a spouse or parent, timely legal advice and representation can be had by contacting Vancouver/Burnaby inheritance and estate litigation law lawyer Andrew Rebane at Resolutions Law Corporation, andrew@resolutionslawcorp.com or 778-372-7107.